NSA: Pillsbury Winthrop Shaw Pittman LLP step on themselves
It's one thing to defend a client. It's quite another to stab them in the back.
But quite stunning to realize opposing counsel may be your best ally.
In re Mark Klein / EFF v. AT&T; NARUS STA 6400; and alleged illegal contractor support of White House, DoJ, and NSA illegal violations of FISA.
AT&T counsel with Pillsbury Winthrop Shaw Pittman LLP appear to have undermined their clients interests. They appear to have essentially confirmed the details of information they want sealed. Not only does this undermine the legal defense, it raises interesting questions how wide counsel has opened the door.
Relying solely on counsel’s apparent bungling, there appear to be ample opportunities for plaintiffs to broadly expand discovery into areas AT&T, NARUS, and the White House hoped you’d never consider.
Ooops!
AT&T has made fatal public disclosures. They’ve essentially confirmed the details of documents they wanted to suppress. In doing so, they’ve contradicted themselves, opening another door for discovery.
Out of court inconsistent statements are admissible under the rules of evidence. AT&T appears to have undermined its central arguments. AT&T’s credibility further collapses.
The issue begins with the AT&T alleged use of the NARUS STA 6400. It remains to be understood when the NSA and AT&T first used this system illegally.
AT&T’s General Counsel issued a statement asking that the documents be returned. AT&T permitted this comment to be made public.
NARUS then asked that the witness statement be withdrawn.
During this request NARUS and AT&T essentially confirmed that the witness statement substantially captures the essential points which AT&T had hoped to suppress by sealing the original witness affidavit.
What we learned:
What AT&T has done:
AT&T made two errors, first
[a] By demanding the witness statement be withdrawn; and
[b] by confirming the witness statements, AT&T has fatally admitted [1] the link between AT&T and NARUS STA 6400 was real; and [2] the essential facts of the affidavit and public summary were true.
These are stunning developments. It is reasonable for the public to question the AT&T subsequent statements. They’ve essentially contradicted themselves, and confirmed the details of information they originally wanted to remain under seal.
It is reasonable to expand public inquiry. The issue isn’t simply whether AT&T and NARUS had a relationship, but the broader relationship between the IT community, the telephone company, and the local governments. It appears as though there are many NARUS STA-like systems in place, and that the systems are substantially unrelated to anti-terrorism. Rather, the information appears to be more heavily supporting day to day law enforcement, not larger efforts.
Moreover, it remains to be understood to what extent the Patriot Act – written well before Sept 2001 – was crafted in light of the 1994 Act calling for IT support of law enforcement in data mining. It appears the Sept 2001 events were simply a pre-text to broaden already illegal and unconstitutional wire tapping which not simply violated the Constitution but was developed with full knowledge that the FISA act required other standards of evidence.
Let’s consider the AT&T actions in light of the Libby alleged perjury before the Fitzgerald Grand Jury. Despite failing to publicly state the true facts about who Libby was protecting – the President and Vice President – Libby’s in action left Judith Miller in Jail for almost three months.
We now know that Libby “justified” his alleged perjury on the grounds that he was serving a higher purpose.
It is our view that AT&T is doing the same in re NARUS and the EFF litigation. Namely, that the issue isn’t simply whether AT&T is or is not involved – they are – rather, the issue is who is AT&T really trying to protect.
It is our view that AT&T’s actual goal is to protect the existing relationship it has with NSA, the White House and DoJ. Moreover, it is our view that the goal of the above misleading, contradictory, and fatal admissions should be taken in light of the entire White House way of operating: Namely, to deceive on the facts, to mislead the public, and assert its right to violate the law over matters related to treaties, the Constitution, and statutes.
The lesson of Libby is simple: If you attempt to undermine the Justice system you’re going to lose. AT&T appears to have attempted to do just that.
It is our view that the evidence and AT&T public comments will substantially undermine AT*T claims that the NARUS STA, witness affidavit, and the scope of the illegal NSA programs is unknown to the AT&T. Bluntly, their arguments have not credibility, and there is no reason to blindly accept what AT&T does or does not say on face value.
AT&Ts arguments are flawed. Their counsel appears to have initially moved to protect the larger relationships it has with the government, all the while failing to see the implications of what it would subsequently fatally deny.
There appears to be a reasonable basis to make adverse inferences.
We judge that the AT&T assertions – that the documents should be sealed for “trade secrets purposes – is a ruse. As with the Dec 2005 NYT article on the illegal NSA activity, the affidavit does not disclose any technical details. Rather, the issue is that the discussion, denial, and inconsistent arguments about those disclosures is making things worse not simply for the original defendants, but the White House, DoJ, DoD, NSA, and Joint Staff.
There are three things to consider:
Within each of the documents, you’ll see a problem. Take as a single picture, you’ll see there are major inconsistencies. When you then review each document in light of this larger problem, you’ll quickly see there are more questions than answers. This is a classic sign of a cover-up, and we judge it is linked to one person: The President of the Untied States.
Witness Statement
Source: [ Click ]
Statement --Mark Klein, April 6, 2006 My Background: For 22 and 1/2 years I worked as an AT&T technician, first in New York and then in California. What I Observed First-Hand: In 2002, when I was working in an AT&T office in San Francisco, the site manager told me to expect a visit from a National Security Agency agent, who was to interview a management-level technician for a special job. The agent came, and by chance I met him and directed him to the appropriate people. In January 2003, I, along with others, toured the AT&T central office on Folsom Street in San Francisco -- actually three floors of an SBC building. There I saw a new room being built adjacent to the 4ESS switch room where the public's phone calls are routed. I learned that the person whom the NSA interviewed for the secret job was the person working to install equipment in this room. The regular technician work force was not allowed in the room. In October 2003, the company transferred me to the San Francisco building to oversee the Worldnet Internet room, which included large routers, racks of modems for customers' dial-in services, and other equipment. I was responsible for troubleshooting problems on the fiber optic circuits and installing new circuits. While doing my job, I learned that fiber optic cables from the secret room were tapping into the Worldnet circuits by splitting off a portion of the light signal. I saw this in a design document available to me, entitled "Study Group 3, LGX/Splitter Wiring, San Francisco" dated Dec. 10, 2002. I also saw design documents dated Jan. 13, 2004 and Jan. 24, 2003, which instructed technicians on connecting some of the already in-service circuits to the "splitter" cabinet, which diverts some of the light signal to the secret room. The circuits listed were the Peering Links, which connect Worldnet with other networks and hence the whole country, as well as the rest of the world. One of the documents listed the equipment installed in the secret room, and this list included a Narus STA 6400, which is a "Semantic Traffic Analyzer". The Narus STA technology is known to be used particularly by government intelligence agencies because of its ability to sift through large amounts of data looking for preprogrammed targets. The company's advertising boasts that its technology "captures comprehensive customer usage data ... and transforms it into actionable information.... (It) provides complete visibility for all internet applications." My job required me to connect new circuits to the "splitter" cabinet and get them up and running. While working on a particularly difficult one with a technician back East, I learned that other such "splitter" cabinets were being installed in other cities, including Seattle, San Jose, Los Angeles and San Diego. What is the Significance and Why Is It Important to Bring These Facts to Light? Based on my understanding of the connections and equipment at issue, it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet -- whether that be peoples' e-mail, Web surfing or any other data. Given the public debate about the constitutionality of the Bush administration's spying on U.S. citizens without obtaining a FISA warrant, I think it is critical that this information be brought out into the open, and that the American people be told the truth about the extent of the administration's warrantless surveillance practices, particularly as it relates to the Internet. Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA's spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with FISA. And unlike the controversy over targeted wiretaps of individuals' phone calls, this potential spying appears to be applied wholesale to all sorts of Internet communications of countless citizens. Attorney contact information: Miles Ehrlich Ramsey & Ehrlich LLP Source: Legal Pad |
AT&T Outside Counsel Statement
Source: [ Click ]
Copy of Letter [Start page 1] Exhibit B [End page 1] = = = = [Start Page 2] [In blue: Exhibit identification information, not on original letter] Case 3: 06-cv-00672-VRW Document 35 Filed 04/05/2006 Page 2 of 3 [left side: Law firm Name Pillsbury Winthrop Shaw Pittman [right side: two address blocks] [Note: block one is on right side] 50 Fremont Street San Francisco, CA 94105 Tel 415.983.1000 Fax 415.983.1200 [Note: block two, on right side] MAILING ADDRESS P.O. Box 7880 San Francisco, CA 94120 www.pillsburylaw.com - - - - - [Note: Mailing address in this block is on the left side] April 4, 2006 Bruce A. Ericson Partner Phone: 415.983.1560 Bruce.ericson@pillsburylaw.com VIA EMAIL AND FAX Cindy A. Cohn, Esq. Lee Tien, Esq. Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 Re: Hepting v. AT&T Corp., No. C-06-0672-VRW (N.D. Cal.)--- Use of AT&T Proprietary Documents Dear Cindy and Lee: I am writing to about the three “AT&T Documents” describe in paragraphs 7 through 22 of Lee Tien’s declaration filed March 31, 2006 (Dkt. 22). The three AT&T Documents have been furnished to engineers at AT&T. I am informed that these documents relate to the technical structure of AT&T telephone networks and are extremely sensitive in nature – for reasons having nothing to do with the subject matter of this case. We they or any on of them to fall into the wrong hands, they could be used to “hack” into the AT&T network, compromising its integrity. This could cause substantial damage to AT&T’s network. These risks, I am told, exist wholly apart from the allegations of your lawsuit and wholly apart form the question of whether these documents are “classified”. Indeed, it is not clear to us at this point whether these documents have any relevant to claims made in your clients’ complaint. The three AT&T Documents are property of AT&T (this is true of all three, even though one, I am told, is not stamped “AT&T Proprietary”) and contain trade secrets. They were taken from AT&T without AT&T’s permission. They were taken from AT&T by someone who (according to Lee) no longer works for AT&T. They were given to you outside normal disclosure and discovery process – also without AT&T’s permission and without any opportunity for AT&T to object or to seek a protective order. I do not know what you have done with the documents, but at a minimum you have told me that you have shown them to some sort of expert. Perhaps others have seen them as well; I assume that the lawyer retained by the former AT&T employee has seen them. 700427651v2 [End of page 2 of 3] = = = = = [Start of page 3 of 3] [In blue: Exhibit identification information, not on original letter] Case 3: 06-cv-00672-VRW Document 35 Filed 04/05/2006 Page 3 f 3 [left side: Law firm Name Pillsbury Winthrop Shaw Pittman LLP [Text begins, left side] Cindy A. Cohn, Esq. and Lee Tien, Esq. April 4, 2006 Page 2 (We understand that you have had media contacts regarding this matter.) I have no idea what steps, if any, you, this expert, the former AT&T employee, his/her lawyer or others have taken to protect the AT&T documents. You did email them to me without encrypting them or taking any steps of which I am aware to protect them from interception by others. For these reasons we ask that: Very truly yours, [signature] Bruce A. Ericson cc: Brad A. Berenson, Esq. David L. Anderson, Esq. 700427651V2 [far right] Pillsbury Winthrop Shaw Pittman LLP [END page 3 of 3] = = = = = [END OF LETTER] |
Here is the fatal admission:
In Monday's filing, AT&T's attorneys asserted that Klein's statement to Wired News covered ``in a summary fashion the allegations set forth in the declaration he filed under seal.'' |
Let’s review what we’ve learned.
1. Nowhere has AT&T denied anything. Rather, they’ve simply asked that the information be sealed. They didn't deny it, but they confirmed the statement -- in public -- is consistent with what they want sealed.
2. AT&T cannot explain why the NARUS corporation is interested in the AT&T events, or why NARUS employees suddenly were aware of the NARUS STA 6400 revelations.
3. AT&T Cannot explain why IT personnel attended the conferences after the 1994 Telecommunication Act
Constant’s responses to the AT&T Attorneys:
Friends,
Thank you for your nice note. As you have fatally asserted, you confirm the essential elements of what has been publicly released in the affidavit. Thank you.
Also, for purposes of litigation and dismissal we consider the assertions by the moving party – namely EFF – and the witness statement to be true. You have failed to provide any justification why the information is false. Rather, you’ve not simply confirmed that there is a reasonable connection between the sealed document and the public warrant, but that the facts as represented in the public affidavit are essentially true.
As to your concern whether the information in the documents is or is not propriety, that is irrelevant. The issue is whether the court and public should have access to the information related to possible criminal acts by AT&T and the White House in violation of the Constitution.
It is our view that the details in the public affidavit – given the court accepts them as true for purposes of dismissal, combined with your fatal refusal to deny the truth, but confirm the essential points – are not propriety. Rather, the information is merely evidence that the public should see. If there is information that is truly secret, and has not been already released by AT&T and NARUS in many public disclosures between 1994 and 2006, perhaps this information may be blocked out. However, the only thing the public needs to know -- and which your statement has confirmed -- is that there is a link between AT&T, NARUS, and the NARUS STA 6400 system. You don't realize how easy you're making this.
Bluntly and more broadly, your assertions have no merit. The scope of the AT&T alleged illegal activity is wholly consistent with the NARUS STA 6400 capabilities as is well publicized on the NARUS website; and also available in the open literature. Indeed, if the AT&T claim that the information was “proprietary” were true, then AT&T and NARUS should have agreed well before the disclosures to the World International Patent Organization in Switzerland. NARUS and AT&T have failed to distance themselves. Rather, the open internet easily connects AT&T and NARUS on many fronts. Thus, your refusal to admit the truth of the allegations combined with your fatal assertions that the summarized affidavit matches what is in the seal has effectively destroyed any reasonable reliance you should have that the original information should be protected, remain under seal, or is in fact propriety.
Rather, it is our view that your claim of “proprietary” is simply a ruse. A plain reading of the affidavit in no way reveals super secrets. Rather, is points us to a single computer system which even the most novice of internet uses could easily use to find technical details which NARUS has revealed. How the NARUS and AT&T systems interface is not a matter of proprietary protection, rather they are admissible evidence for purpose of an ongoing criminal investigation into alleged violations of the law and our Constitution.
Had AT&T had the foresight to see the scope of the problems, you might have appropriately timed the responses to coincide with subsequent disclosures about the NARUS system. However, you chose to move quickly, and have provided confirmation of the single bit of information needed to link the White House, NARUS, DoD, NSA, and the alleged illegal activity.
In this case, the issue isn’t whether there is or is not an alleged conspiracy – clearly, NARUS and AT&T are well connected. The issue is going to be which person inside NARUS and AT&T sees that there may be valuable monetary incentives in coming forward and providing litigators and criminal investigators with other evidence related to this alleged conspiracy.
The problem for AT&T is that the public and government are already in violate agreement: The FISA statute has been violated. The question is simply of who is going to admit that the warrants they received or relied on were reasonable, or whether AT&T General Counsel failed to ensure that the warrants actually were a bonafide exception to the 4th Amendment.
It is our view that AT&T has failed to ensure that the information could not be gleaned fro mother sources. Rather, the burden is on AT&T to show that there are actual damages. You have made no reference to any damages. Rather, they are merely speculative. However, given NARUS attendance at public conferences well before Sept 2001, we see little reason to believe this late in the game – April 2006 – that the information the public now has is anything new. Rather, taken in a broad sense, you’re asking the public to believe that a single document substantially opens AT&T to some sort of new threat. Again, this sis speculative. Again, the public disclosures of the technical details, combined with the public patents well show the AT&T and NARUS have failed to effectively ensure that the essential program decisions are secret.
Rather, from a broad perspective it appears your comments have one objective: To support the White House and the illegal NSA activity. Had you truly had an interest in ensuring that the so called “trade secrets” were protected, you would not have fatally admitted in subsequent filings with the court – that you knew, or should have known would be made public – that the public affidavit essentially summarizes what was under seal. In short, you’ve simply argued against yourself. If the information was truly secret, proprietary, a trade secret, or something related to what AT&T could not let others know, you should have done the opposite of what you did, namely have made a clear statement that the information was completely new to you. However, you fatally asserted the opposite
AT&Ts problem isn’t simply that you’re a defendant, but that your open disclosures in no way support your contention that the facts – as they may or may not be present in the witness statement – have any relationship to any protection. Rather, the larger issue is, despite it being April 2006 – fully 4 months after the NYT revelations – is what is AT&T going to do.
This is the question. A plain reading of the situation would – if AT&T were innocent of wrong doing – we should see some compelling evidence or basis to not believe what we now well know: That the FISA has been violated; and the basis for the warrants were absurd. This late in the game is too late to argue over proprietary information. Rather, we should see something more compelling related to the law and why the warrants AT&T was relying on were reasonable.
Rather, we have the opposite: No discussion of the law, nothing to justify confidence that AT&T reasonably acted, and simply focusing on whether or not information – already well publicized – is or is not protected. Again, as the White House has argued over the NYT article, there is nothing to suggest that the revelations – which you have confirmed by failing to deny them – have anything to do with proprietary details. Rather, it appears the opposite: That the AT&T and White House have no defense, and even the most stupid of American citizens on any jury could easily be convinced that AT&T could not have reasonably relied on the exceptions to the warrant requirement. Your public statements fail to address this issue.
Again, this late in the game, given there is no substantive new information or legal argument to justify any confidence that AT&T reasonably acted in re the warrant requests, we walk away stunned and dumbfounded that AT&T actually believes the public is going to fall for this non-sense.
Bottom line: AT&T and the White House have allegedly engaged in criminal activity. Nothing you have said warrants any different conclusion. Rather, you’ve fatally admitted that the public discussion and summary of the warrant is consistent with what is under seal; and all the public has to do is simply review the public technical discussion from NARUS to find out the details. Again, if AT&T has a desire to protect proprietary information, then you need to show that that use is something that is real, not merely speculative. Again, a plain reading of the World International Patent information in Switzerland combined with the public disclosures AT&T has made in re the patents; and the NARUS public commentary on the capabilities wholly creates a picture that is at odds with your claims.
But enough of generalities and religion, let’s talk specifics.
1. In your opening you state, “Dear Cindy and Lee:” this sounds kind of informal. Given the gravity of the situation and the fact that the evidence before us may be part of the National Archives in re a Presidential impeachment, would you like to be known by your first name, or should we call you, “Oh renowned one.” Your informality is at odds with the gravity of the situation.
2. In your second sentence, you well cite the document. “I am writing to about the three “AT&T Documents” describe in paragraphs 7 through 22 of Lee Tien’s declaration filed March 31, 2006 (Dkt. 22).” However, you fail to discuss the other documents. Specifically, given the public revelation of the information under seal – in this sentence you fatally admit that there was at Dkt. 22 a specific item which – you later admit – is true. Why are you being foolish? If you wanted to protect this information, the worst thing you could have done was – as you have done – refer to the specific document, then later confirm that that document is accurate. Are you sure that you’re not actually working for EFF?
3. In your third line, you state, “The three AT&T Documents have been furnished to engineers at AT&T.” This compels us to ask, “So?” You fail to mention that the documents – however “technical” they may be, are actually easily constructed using open sources; moreover, given your fatal confirmation that the public affidavit is true, we can easily back engineer the contents of the original sealed-document, and make adverse inferences. Any jury can do this. Moreover, your desire to suppress something that any jury could easily make adverse judgment about simply casts you in an adverse light. By this, I do not mean just your client, but you as an attorney. Let’s get serious: Did they teach you to make fatal admissions in your law firm, or was this something you missed during 2L?
4. Sentence 4 is lovely. “I am informed that these documents relate to the technical structure of AT&T telephone networks and are extremely sensitive in nature – for reasons having nothing to do with the subject matter of this case.” Let’s consider this, in this sentence – despite later admitting later that the affidavit is true – you would have us believe that you are “informed” – by who we are not told – that the documents are sensitive for “reasons that have nothing to do with the subject matter of this case.” OK, let’s presume for the sake of argument that the reasons are “something else.” If that :”something else” is speculative – as appears to be the case given the evidence already showing that the technical details of the NARUS system, and the patents and information in Switzerland are public – why should we believe you’re excited about something that is based on a bonafide desire to protect these sensitive issue? Your later fatal admission that the public affidavit summarized the sealed document wholly undermines your argument: You should have done the opposite and refused to comment. But you not only put it in writing, but then contradicted yourself. The real issue – in our personal opinion – is whether AT&T is going to retain you as counsel, or find someone else who isn’t going to – in our personal view – make errors which substantially undermine AT&T public reputation and argument. Again, the issue at this point isn’t what AT&T may or may not have disclosed; the issue is who is defending your client. At this point, all you’re doing is contradicting yourself, and confirming the essential details that the public only needs to know: That there is an NARUS STA 6400 system, and that the employee’s comments are remotely related to reality. This is all we really need to know at this point. In turn, the way forward – again using open, non-sealed information – is to then use what you have confirmed and simply use open sources to reasonably make adverse inferences bout the relationship between AT&T and NARUS. Again, the open information clearly suggests AT&T and NARUS are not only well connected, but that you were both well aware of FISA and the 1994 telecommunications act as evidenced by your common attendance at conferences in 1998, and common names appearing on conference lists. So, at this point, we fail to see how your statement does anything to help your client. All you’ve done is publicly provided additional confirming details which makes the link between AT&T, NARUS, DoD, NSA, DoJ, and the White House much stronger. Moreover, this late in the game – April 2006 – we hear nothing to justify confidence to the contrary: That there is a “really good reason” why the affidavit is false; or why there was some “really compelling legal reason to accept the DoJ affidavits on the warrant exceptions.” All you’ve done is confirm that you knew well about the NARUS STA 6400 systems, and the public internet data confirms this. Thank you for destroying any confidence that the reason you’re trying to seal the information is because of trade secrets. Rather, it appears to be something else – equally speculative, and well within the scope of reasonable inquiry that a jury may make if there are additional efforts to seal information which the jury should have been given access to.
4. Sentence 4 is speculative, “Were they or any one of them to fall into the wrong hands, they could be used to “hack” into the AT&T network, compromising its integrity.” Notice also that you are pointing more to the White House version of “wrong hands.” Could you be more specific what you mean by “wrong hands”? Do you mean people that might actually use the information to discover that you are allegedly – as an attorney – engaging in rebellion and defending a client that is in active opposition to the US Constitution? Or are you speaking more speculatively, as the White House does when it points to the heavens and says, “Oooh, big scary things: Maybe we should burn the Constitution. Look here, I’m burning it. Now you’re free.” No, at this point given the AT&T disclosures in the open media – and your fatal confirmation that the NARUS STA 6400 is a real thing – you’ve made no compelling argument that the “wrong hands” are real. Rather, this is speculative. So a reasonable court could very well be convinced that this claim is merely more of the White House-DoJ- non-sense used to engage in the initial abuse. Are you sure you didn’t coordinate this with DoJ?
With respect to the speculative future outcome that someone may be able to “hack” into the system your argument fails. The open literature well discusses how the technical details work. Whether the public is given this information to make a legal decision is a separate issue. Rather, you point to a speculative “big scary risk” of what might happen, but you fail to quantify that risk, or make any showing that the number of hackers would increase. Moreover, you should have included a number of hack attempts and included information on the total number of hack alerts you have sent to the FBI. You failed to provide that information. Thus, any assertion that there will be “more” hack attempts based on this new information is not only speculative, but vague and not something to be believed. Even if true, it fails to account for what you've confirmed, thereby providing the necessary confirmation -- outside what is sealed -- to achieve the same outcome. Thus any claim that sealing or not sealing the document is an issue is irrelevant. Your actions have directed those -- who you speculative say may do something -- to do the very thing you did not want to call attention to: The method by which the AT&T and NARUS STA 6400 interfaced to violate the law. This is not speculative, but implicit in your argument. Thus, burying this fact doesn't accomplish anything, other than ask the public to assent to non-sense. Is that what you want? AT&T’s outside counsel’s standing is slipping.
5. Sentence 5 you claim “This could cause substantial damage to AT&T’s network.” Really, how so? Could you be specific on the number of hacks that have already occurred based on the information you have publicly disclosed? It’s speculative that there would be increased hacks; or that the damage would be substantial. Rather, given the NARUS STA 6400 system, would it not be reasonable to conclude that your monitoring system would detect this problem and easy wall off the problem? If this is not the case, then you appear to not understand what the NSARUS STA 6400 system can do: It can act as a warning system to do just that. Or, are you saying that you’re trying to protect the proprietary sere’s of a product whose capabilities your engineers have not explained to you? If that is the case, then we question whether the basis for your claims – as to who has or has not reviewed the information at AT&T – should be relied upon, or whether they truly understand the NARUS STA 6400 system, and how AT&T intrusion detection systems work. Again, that counsel may have a problem understanding the client’s product is not one for the public to “wade though” – rather, it’s your job as counsel to better coordinate your public statements so that your clients’ interests are protected. AT this point, it’s clear that you’re an excellent adversary: You defeat yourself simply by breathing.
6. Sentence six is curious, “These risks, I am told, exist wholly apart from the allegations of your lawsuit and wholly apart form the question of whether these documents are “classified”.” This sentence fatally confirms what we’ve suspected: That counsel isn’t in a position to affirmatively state anything as a position they will stand on; rather, you rely on the “I am told” waiver-qualification. That tells us one thing, that you “may” or may not have talked to “someone”. Given you have failed to cite your source, and that you have failed to justify why we should believe your statement it is entirely reasonable to conclude that the technical details are not only irrelevant – as to reasons for sealing the document – but that the allegations in the original complaint are inherently linked to the desire to suppress what is now well known: That AT&T and NARUS know full well that NARUS STA 6400 “should have” only been used had there been a bonafide warrant issued in a manner consistent with FISA. Again, this is all the jury needs to know: Did AT&T actually have knowledge of this. Your statements fail to deny this reasonable conclusion, and in fact merely confirm that the basis for the cause of action is not only reasonable – thereby undermining your apparently hopeless desire to dismiss the case – but that the essential claims are not only true, but will be well supported by discovery. Again, the issue isn’t whether the information is or isn’t propriety. The real issue is why we should believe your “defense of that point” has any relevance to whether or not the information we already know – that AT&T and NARUS well coordinated using the NARUS STA 6400 – is something that is isolated, or is actually one of many of the systems currently in use by other contractors around the country. That you have failed to discuss the legal issues, and asserted that the technical details are “wholly apart” from the allegations makes us believe the opposite: That a broader discovery in the 1994 and 1998 conference lists will well show us which NSA contractors have installed other equipment in other cites, and have relied on defective warrants they knew – or should have known – were at odds with the FISA. Your comments fail to address these reasonable adverse inferences.
7. line Seven is noteworthy: “Indeed, it is not clear to us at this point whether these documents have any relevant to claims made in your clients’ complaint.” That you may or may not be clear on something is not relevant. The issue is that the case is one for the plaintiff to put together. That you or your client may be confused as to what is going on is not in question – you clearly are confused as to what the public may reasonably make adverse inferences about, and the fact that your client would have us believe one thing, but counsel is saying the opposite: That there is a link between AT&T and NARUS, despite the feigned story and appeal to ignorance to the contrary. Again, we go back to the central issue: Who in the White House directed you to feign ignorance about technical details, in the hopes of distracting attention from the warrants which failed to meet FISA? Again, the Congress has already agreed that FISA is not consistent with thaw the DoJ and NSA were ordering; our question is after you found this disconnect, did you document it before or after the 1998 conferences; or did you wait until the 2005 NYT article to “finally get around” to making a memo saying, “Uh, you know that Zyklon B stuff that Hitler used, do you think we’ve got a potential malpractice claim here for not having guided AT&T to not do this?” Who knows, it’s all so confusing isn’t it.
8. Line 8: “The three AT&T Documents are property of AT&T (this is true of all three, even though one, I am told, is not stamped “AT&T Proprietary”) and contain trade secrets.” This is meaningless. You assert that the documents – which you later reference, confirm, and publicly admit to the essential details: that there is a link between AT&T and NARUS STA 6400 – are to be protected. If this is true, why are you confirming in open documents information that leads us to the very information you want to protect? The information is on the internet; we can see there is a link between NARUS and AT&T; the Bodies in Switzerland and the patent trade office tell use the information. Yet, lost in all this is the FISA and why AT&T was accepting warrants which do not appear to meet the exceptions. You fail to address this. So whether the documents are or are not someone’ property is irrelevant; the issue is whether the information on that document – that you have confirmed – can still be protected. You’ve already answered that by your actions: You’re confirming the truth of information you want to have sealed. Again, keep in mind the person you’re talking to is a complete idiot and really has no clue. So, imagine what is going to happen when you have someone who is competent, like a Jury Member who can combine their infinite wisdom with reasonableness and is asked, “Do you think you can believe the AT&T counsel?” A reasonable jury member might conclude that AT&T counsel are tripping over themselves just like the DoJ Attorneys are. Are you sure you’re not comparing notes – this diversion is so familiar.
9. Line 9: “They were taken from AT&T without AT&T’s permission.” What evidence do you have of this? Are you saying there’s been a theft? Why hasn’t the “big scary” FBI, and JTTF been called in. Oh, my – you don’t think that “information that you’ve later confirmed” makes the information “protected”? How can that be. Again, you’re simply asserting that someone may or may not have done something. Well, if that’s the case, what did AT&T do about the document control; and why were the documents supposedly “let out of your control” despite certifications to the DoD and Defense Contractors that you have a bonafide system in place to ensure that documents are controlled. Again, this raises reasonable questions as to whether your system – however defective it might – that you may or may not have reviewed – does or does not meet the OPSEC requirements DoD and NSA have imposed on you. This raises real national security issues: What review, if any did the General Counsel do on the procedures, and how did the contracting officer with AT&T certify that all the documents were retained. Are we to believe that despite certifications to DoD that the information was protected, that you’ve made a false claim to DoD; or are we to believe that you’re trying to distract attention from the FISA issue, and have no comment on why the general counsel was or was not discussing issues of FISA with DoJ general Counsel? It’s all so confusing. If you believe these documents were “taken”, what evidence do you have of that and when did you timely notify law enforcement? Again, the real issue appears to be that the information in the documents has already been validated as being true by none other than . . . .[wait for it . . .] . . . you. How’s your malpractice insurance coverage: Would you like a check up, or are you saying that you’re “up to speed” on your CLE?
10 Line 10: “They were taken from AT&T by someone who (according to Lee) no longer works for AT&T.” And what does this have to do with your excuses not to ensure that the FISA warrants were or were not consistent with the statute? No answer.
11. Line 11: If this is true -- “They were given to you outside normal disclosure and discovery process – also without AT&T’s permission and without any opportunity for AT&T to object or to seek a protective order.” – then your later statement that the comments were or were not true then become admissible. So your argument fails. In fact, your fatal assertions – that the summary about the AT&T-NARUS connection over NARUS STA 6400 are real – essentially makes it a moot point. Rather, you should have simply done the opposite of what you did: Not react, wait for the world to conclude that your client was guilty, then asked the plaintiff to prove their case. But you did that for them: You confirmed the only missing piece of information we did not know – the technical name of the device which NSA has already confirmed was in use. The only thing we didn’t know was which personnel inside NARUS and AT&T were working with the NSA, DoJ. Thank you for confirming use the last piece of information. Are you looking for a bonus for your “fin support’ of the EFF plaintiff’s case? I hear those attorney awards are really big. How you liking this?
12 Line 12: Is really interesting. You feign ignorance, about something that is irrelevant; but you confirm what we suspect – that there are documents that you have seen, well know about, and mention the NARUS STA 6400 -- “I do not know what you have done with the documents, but at a minimum you have told me that you have shown them to some sort of expert.” Thus, what may or may not have happened to “these documents” is irrelevant. All you’ve done is confirm to us that we’re talking about real pieces of paper, and that there was some sort of communication related to the NARUS STA 6400, and that AT&T and NARUS are in agreement that these documents are real. These are called fatal admissions. Are you sure you want to keep reading? It’s only going to get worse.
As to you point of which “expert” may or may not have reviewed them – this is merely a smokescreen. The real issue is that the NARUS STA 6400 system is real, it is mentioned on a document, you have confirmed that document is real, and that there is – at the other end, in both NSA, DoJ, DoD, and NARUS – another set of documents which match what you would have us believe “we cannot see.” Hello, there’s something called a FOIA. This means that the public can ask for the other documents retained inside NSA, DOJ, and the White House on these specific issues. However, the problem you have by confirming NARUS STA 6400 is real, is that we can use the NARUS SYA 6400 test runs – and the data that was collected during the validation testing with Oracle – to pinpoint the exact locations where other documents were sent and received.
Yes, ladies and gentlemen, AT&T’s counsel has just led us to another nugget. By confirming that there is a real system in place – not something an engineer made up – we now know that before Sept 2001 – in the wake of the 1994 Congressional act calling fro IT support to Law enforcement – that Oracle, AT&T, NARUS, and other NSA contractors had to engage in some sort of validation testing under the Federal Acquisition Regulations. In turn, this means that AT&T would have had to have sent to Ft. Belvoir, VA someone to attend the program manager course on DoD Acquisition, and then there were specific test plans which included dry runs of data in and out of AT&T and NARUS to confirm that the process would work. This means we have more information on travel, conferences, and this information is available through Columbus Defense Finance Accounting Service: and should match the lists that are available on the subpoena lists, and who else attended the conferences. So, thank you AT&T outside counsel, you’ve formed a reasonable basis for the public and Congress to request FOIAs through the DoD acquisition community.
13. Line 13: Here you provide an opening and a new idea, indeed perhaps there is some data flows between NARUS, AT&T, and DoD -- ” Perhaps others have seen them as well; I assume that the lawyer retained by the former AT&T employee has seen them.” – we can only imagine how wide this FOIA request will be. You also show that you are making assumptions. This means that there is a reason for you stating this. Are you sure you aren’t a witness to this; or are you asking the public to not have a derivative lawsuit against your files. Surely, you can’t claim attorney-client privilege: That information has already been intercepted by NARUS STA 6400 and there are copies outside the Americans’ control inside GCHQ. Did you want to comment further on your assumptions, or does the FBI need to do what they did with Libby’s counsel and find out what you were really taking about, and the real concern you had with the assumptions. Indeed, you’ve well stated that there may be other counsel involved, which would lead a jury to reasonably conclude that the alleged conspirators – a group, as you have fatally admitted – were well aware of the legal issues. Thus, this late in the game it’s not credible for anyone to believe the White House assertion – rather, delusion – that they “didn’t know.” Rather, the opposite is true: That counsel were well aware of the issue, and that despite information that the warrants were inadequate, someone inside the AT&T General Counsel’s office appears to have said, “You know, maybe we should just be stupid and say, ‘no problem – we don’t care about the Constitution.” That’s the heart of the matter isn’t it. All this time, and we finally find out that the capable outside counsel for AT&T has a reasonable expectation that the opposition has counsel; thus a reasonable jury could conclude that the same is to be said of the AT&T, NARUS, and the White House – AT&T outside counsel knows about counsel, so shouldn’t the people like Gonzalez and Harriet Miers well know what is going on? Again, the claim of “privilege” is meaningless when the reasonable jury member could conclude that it is not reasonable for someone to say – this late in the game – “OH, I really had no idea.” Not plausible. Did you know that saying, “I didn’t know” is not credible when there are documents form the AT&T outside counsel specifically mentioning counsel; and confirming the NARUS STA 6400 system? Please, could you make another peep – we might find some really big morsel. I’m groveling at your feet, drooling – please, anything: A single word. You provide so much help to defeat you client, I beg you – simply respond. You don’t even have speak. The clouds will move and we will have new signs!!
700427651v2
[End of page 2 of 3]
= = = = =
[Start of page 3 of 3]
[In blue: Exhibit identification information, not on original letter]
Case 3: 06-cv-00672-VRW Document 35 Filed 04/05/2006 Page 3 f 3
[left side: Law firm Name
Pillsbury
Winthrop
Shaw
Pittman LLP
[Text begins, left side]
Cindy A. Cohn, Esq. and Lee Tien, Esq.
April 4, 2006
Page 2
Line 14: Oh, so now they start talking about the media. “(We understand that you have had media contacts regarding this matter.)” Wow, do the reporters have better credentials than Jason Blair, or are they well medicated? Or are we to believe that the reporters are like Jared Reed Smith, and using information to smear others? It’s all so confusing This suggests the AT&T is well familiar with something called a “media strategy.” Are you trying to suggest that the EFF counsel are “up to something” or are you simply trying to distract attention from the AT&T alleged failure to ensure the warrants were lawful? It’s one thing to make up non-sense to distract attention, quite another to mention things that are not relevant. But what is curious is your mention of the media – as if that has any relevance. Surely, if that were a “really big problem” you would not have made any comments that the media would report. Yet, here you are – you’ve essentially confirmed the details in the affidavit, and that the NARUS STA 6400 system is real. So, OK if someone is talking about the media, could you discuss your coordinating with the White House counsel on how this message is to be handled in the media; again, it’s one thing for counsel to mention something, quite another for counsel to have also had media contacts. Are you suggesting that only some in the White House and AT&T can discuss matters with the media – with the hopes of manipulating the jury – but that others are not allowed to answer questions, even technical details or respond to error? That is curious: Perhaps the AT&T outside counsel – the new ones, if this crew can’t cut it – might put this on their “really nice action list” when the auditors arrive, audit scope is increased, and the response is, “You know, we were going to give you guys a pass, but that outside counsel really set off some alarm bells. Did you know that the NARUS STA 6400 system actually told us a problem about the AT&T . . . .” Wow, wouldn’t that be funny – if the NARUS STA 6400 data sweeps included your comments, and that GCHQ records confirmed that the NARUS STA 6400 intercepts were consistent with the concerns inside the Time Warner General Counsel’s office. Isn’t that funny!
Line 15: Quote; “I have no idea what steps, if any, you, this expert, the former AT&T employee, his/her lawyer or others have taken to protect the AT&T documents.” This is a nice diversion. Do you plan on discussion why this information should be protected – given you’ve later confirmed the essential point: That there is a NARUS STA 6400 system, and that you have not denied there were documents with this; and that the AT&T and NARUS are known to each other? Again, you make a fair attempt to distract attention, but we can only conclude one thing: You have no credible defense. Here we are at line 15, and you’ve said nothing about FISA, and made no mention that NSA or AT&T have not done what has been alleged: Violated the law. Sounds really weak. And you think even a stupid jury won’t pick this up? Holy moly, what did you learn during your summer bar review? Oh, that’s right – they didn’t tell you what to do when, “The White House and NSA show up and spew forth non-sense, and then someone else rolls over and allegedly violates the law.” That’s quite a mess – how do you propose to advise your client? At this point, it seems as though you’re the one whose in need of some advice. Do you have counsel retained, or are you not used to being the target of a derivative lawsuit?
Line 16: This one is absurd: “You did email them to me without encrypting them or taking any steps of which I am aware to protect them from interception by others.” Keep in mind what is happening: The same counsel that has failed to deny the existence of the NARUS STA 6400 link to AT&T – as system that can vacuum anything – is “suddenly worried” that the document might get intercepted. Huh? What use is that? Don’t you know what is going on – it doesn’t matter if it is encrypted – NSA and GCHQ can break into anything. Or are you saying that the “experts” that you referred to above didn’t tell you that the system is designed to both encrypt transfer, and interface with systems that the NSA cannot yet decipher? Yes, that’s true: Your technical experts didn’t tell you about the ‘really neat stuff” that was used to lawfully intercept the communications between Libby and his counsel. Isn’t it funny how Fitzgerald keeps dancing around it, but this many years after the Plame issue – the legal noose is getting tighter around the “big man” into the White House? Wow, all this time, and who would have thought that the “big man” himself was going to be the one that took himself down.
Line 18: This one is funny. This request – even if it were reasonable, despite the above “argument” – is moot: The public already has the information it needs: We know all about the NARUS STA 6400, and that AT&T and NARUS are well connected. QUOTE: “
Line 19: This is a request that shifts the burden from the defendant to the plaintiff. This should be stricken as a waste. First, the public already has been given information by AT&T outside counsel that the information is true. There’s no merit to providing a log of who has or hasn’t seen it. Second, it’s the job of the defendant to start responding to some questions: Where’s your lob of the documents and test results of who knew about the FISA requirements, but failed to ensure the NSA orders were consistent with FISA; Third, who are you to actually believe that the public can’t see thought this – get real, even stupid idiots in the public who are currently drooling on themselves and have no clue about the model rules or procedure or CLE can figure this out: You’re changing the subject, your trying to start a counter suit. If that’s what you want: Do it. “
Line 20: It appears this request is frivolous: Even if all the documents were returned – which they wont be – counsel has fatally admitted the truth of them, and the public can go to other information to find new information. If counsel didn’t want to open this door, counsel should have refused to comment. “
Batman
Robin, are you ok?
Robin
Holy Zykon B Batman, what happened?
Batman
The AT&T counsel is rolling their eyes.
Robin
Batman, I think you’re right.
Batman
Robin, wait – they’re not sweating. They are rocks. Incapable of smiling.
Robin
Holy Crusty Underwear Batman, you don’t think . . .
Batman
Yes, Robin, it’s true – they’re not eating enough prunes. They don’t drink enough water. Their skin is dry.
Robin
Holy NARUS STA 6400, Batman -- do you have a solution?
Batman
I recommend the wiping tanning lotion across the forehead. It helps relieve stress.
Line 21: This sounds like the counsel wants plaintiffs to reveal a source. Ha! “
SFX: Ping.
Line 22: Do you really mean this, “Very truly yours,” – what if you weren’t truthful? What is you were trying to make a smokescreen?
[signature]
Linen 23: Bruce! “Bruce A. Ericson” Why didn’t you introduce yourself
cc:
Brad A. Berenson, Esq.
David L. Anderson, Esq.
What we learned
AT&T’s outside counsel has opened the door to more discovery. Rather than make a good showing as to why the original claims had no merit, they’ve substantially confirmed the necessary technical detail – the name of the NARUS STA 6400 – and that the information is actually on paper. This means that the DoD, NSA, DOJ, and White House can be linked to the NSA events with FOIA
The issue going forward is whether the AT&T outside counsel is going to cooperate with discovery, or whether they are doing to throw up additional smokescreens. It is our view the court has enough information to find that counsel is wasting time.
Rather, it is more appropriate to move forward on the basis of what the AT&T outside counsel have confirmed – and find the information related to the NARUS STA 6400 related to contract testing, and other software technical details that should have prevented the illegal use of tools that were not consistent with the FISA requirements.
Again, the broad picture is that nothing the AT&T outside counsel has said has done anything to dissuade the reasonable public concern that the illegal NSA activity is isolated o related to terrorism. Rather, it reasonably appears to be much larger, and hat many agencies inside the US Government fully know the scope of the problem, the other contactors involved, and the specific technical hardware used. It doesn’t really matter what the technical details are – all we have to know is that the technical hardware was designed one way – but the end result was that the hardware permitted – what the White House fatally admits – violations of the clearly promulgated statute.
The issue before us is whether AT&T engineers designed this allegedly illegal software on their own – fully knowing it did not meet the requirement of Congress; or whether they illegally conspired with other contactors working for NSA to integrate other tools into other tests.
It is our view that the AT&T counsel have done an excellent job. They have masterfully demonstrated that even a single comment by counsel can completely destroy what hint of a defense you may have. Yet, their masterful litigation is not to be unmentioned. Had it not been for the AT&T outside counsel’s inconsistency, we would not be in a position to expand discovery into other areas looking for the tests which the AT&T counsel appears to have been in a position to opine on before the allegedly illegal conduct occurred. This implies that the conduct was not simply negligent, but that a good case could be made that it was reckless – the White House appears to have conspired with AT&T and the NSA to violate the law despite capable legal counsel who were in a position to advise otherwise.
We can only wonder: What will require counsel to ensure the law is followed, not simply given excuses to ignore? We went through this with Nixon. He invaded Cambodia, violated the rights of Americans, and then we passed laws.
Today, despite the laws, the contractors and thei5r counsel appear to have assented to this non-sense. We have to ask: If the legal community – which takes an oath to the Constitution – cannot be trusted to ensure the laws are followed, is there someone else we will have to turn to ensure the rule of law prevails in America.
Fortunately, we have a system of governance that includes the courts. Some in industry and government pay attention to them. The judicial officers – the fine individuals who can see the wisdom of the law and whether or not we need to spend more time gathering evidence, or can simply make adverse inferences -- are there ready to compel discovery in broader areas when counsel has opened the door. The door is still wide open. Thank you for your cooperation.
We defer back to the wisdom of the court which appears far more capable that the apparent bungling by outside counsel – repeated contradictions, and fatal assertions.
Americans can rest well. Despite your American leadership in the White House being war criminals, the contractors appear to have hired counsel who are more interested in showing more than they plan. The real issue before America is: What will the AT&T outside counsel do next. All they have to do is do something – and we’ll learn more. They appear to be in a no-win situation. And their client does not appear to be in a better position, not thanks to them.
Keep in mind, the jury is a lot smarter. Try again Maybe you won’t embarrass yourselves as much.
Didn’t they teach you this in 3L?
posted by Constant @ 2:07 PM
<< Home